"Rime" Graffiti Case Against Moschino Survives Dismissal

Last year street artist Joseph Tierney, better known as “Rime,” sued designer Moschino S.p.A. and its creative director, Jeremy Scott, for a variety of copyright and trademark claims based on the alleged use of Rime’s works in certain fashion lines. The presiding court has denied Moschino’s efforts to have the claim dismissed in a decision that provides an important, if implicit, endorsement of the rights of street artists under the Copyright Act, and of a novel theory under the DMCA. While some reports stated that the case was now going to trial, it is not there quite yet. It will now presumably head into discovery for the exchange of facts and information to see if there is in fact a need for a trial later.

Tierney alleged in his Complaint both that Moschino misappropriated his “Vandal Eyes” images themselves in the fashion line featured in Moschino’s February 2015 runway show in Milan worn by supermodel Gigi Hadid and in May 2015 by Katy Perry at the Met Gala (shown above as Tierney set forth in the Complaint). Tierney also alleged that Moschino removed the identifying marks and reinserted them elsewhere, which he described as a manipulation of copyright management information (CMI) in violation of the Digital Millennium Copyright Act (DMCA, 17 U.S.C. § 1202).

The motion made a few different arguments. First, that Scott is himself an artist, and as such that the designs are a form of artistic expression protected by the First Amendment. Second, they contended that fashion is a matter of public interest and that the case was really a SLAPP suit—strategic lawsuits against public participation—that should be dismissed under relevant California law. Scott also moved to dismiss individually that the copyright infringement claim should fail because Tierney has not provided anything that Scott was responsible for actual copying of the mural onto Moschino’s apparel. Lastly, the two defendants argued together that the CMI theory is misplaced, and was intended to apply to digital information, not physical attribution.

The U.S. District Court in Los Angeles denied the motions. It first disagreed with Scott that Tierney had not sufficiently alleged Scott’s involvement. Tierney accusations supported a “reasonable inference that ‘the high-profile head designer and creative visionary of the Moschino brand would participate in the design of its most high-profile garment of the season.’”

With regard to the CMI argument, the court agreed with Tierney that the facts alleged supported the inference that the deletion in some places and insertion of the RIME signifier in others was done knowingly. Further, while acknowledging the disagreement on the subject, the court was persuaded by those earlier decisions that held that CMI need not be digital to be enforceable under the DMCA. Lastly, the court found fact issues precluded dismissal on the Lanham Act claims.

With regard to the state law likeness appropriation claims, the court similarly rejected the defendants’ arguments. Tierny alleged that the defendants used use tagline RIME without his permission, which the court deemed sufficient to support the claim.

Lastly, as far as the overarching SLAPP argument is concerned, the Court did agree with the defendants that their prominence and expressive work made the case one of “public concern.” But since the SLAPP statute also requires a determination that the complaint fails to support the claims, and the court had already decided that it it—indeed that Tierney is likely to prevail. No SLAPP dismissal was available as a result.

The decision is in some ways as important for what it does not say as what it does say. There is broad agreement among copyright commenters that street art is available for copyright protection, but much less explicit endorsement of that principle in case law than one might expect. As with VARA cases, the fact that the court proceeded to analyze the DMCA and CMI rights presupposes that Tierney’s art has those rights to begin with. Further, the court’s endorsement of the legal CMI theory could prove applicable in many other cases.

The case will probably not spawn any legal decisions for some time, but it will be interesting to see how the parties argue summary judgment when discovery is over.